The opinion of the court was delivered by: Levy, United States Magistrate Judge:
Defendants move for summary judgment under Fed. R. Civ. P. 56 on all of plaintiff's claims. This matter is before me on consent of the parties, pursuant to 28 U.S.C. § 636. I heard oral argument on August 1, 2011 (see Transcript of Oral Argument, dated Aug. 1, 2011 ("Tr.")) and have carefully considered all of the parties' submissions. For the reasons stated below, both motions are granted.
Plaintiff Cora Rahman ("plaintiff" or "Rahman") commenced this diversity action in New York State Supreme Court, Queens County, on January 29, 2010. On March 2, 2010, defendants Museum of Natural History, City of New York (the "Museum") and District Council 37, AFSCME, AFL-CIO (the "Union") (collectively, "defendants") removed the case to this court. The action alleges that plaintiff was wrongfully discharged from her position as a security guard at the Museum in February 2007 because of her disability and in retaliation for her attempts to gain a reasonable accommodation. (See Amended Complaint, dated June 12, 2010 ("Am. Compl.").) It also alleges that the Union violated its duty of fair representation and that the Museum breached the collective bargaining agreement between it and the Union. (See id.)
The court assumes familiarity with the facts.*fn1 Briefly, the Museum hired plaintiff as an attendant (security) guard on or about December 13, 1999. (Id. ¶¶ 9, 10.) When she was hired, she became a member of the Union and a party to the collective bargaining agreement ("CBA") between the Union and the Museum. (See id. ¶ 8; Union Defendant's Statement of Material Facts Not in Dispute, dated Feb. 1, 2011 ("Union's Rule 56.1"), ¶ 3.) On June 21, 2003, while plaintiff was working at the Museum, a patron physically attacked her. (Am. Compl. ¶ 12.) She sustained injuries from the attack (id. ¶ 15) and then she spent over a year absent from work on sick leave (see id. ¶¶ 17--20). During this time, she underwent intensive chiropractic and physical therapy. (Id. ¶ 19.) On June 23, 2004, plaintiff returned to work. (Id. ¶ 20.)
On May 4, 2005, plaintiff was injured on the job again, this time by a mechanical garage arm in the Museum's parking lot. (Id. ¶ 21.) She was subsequently placed on medical leave. (Id. ¶ 22.) By letter dated August 23, 2005, Dr. Charney D. Slater addressed a "Return to Work Order" to the Museum; he stated that Rahman was "ready to return to work on 8/31/05" and noted that she "will continue therapy at 2 times per week." (Affidavit of Diane Windholz, Esq., sworn to Jan. 31, 2011 ("Windholz Aff."), Ex. F.) Plaintiff returned to work on or about August 31, 2005. (Deposition of Cora Rahman, dated Oct. 18, 21, and 29, 2010 ("Rahman Dep."), annexed as Ex. A to the Windholz Aff., at 66.) To accommodate her physical therapy appointments, the Museum changed plaintiff's regularly scheduled days off from Monday and Friday to Tuesday and Friday. (Rahman Dep. at 175--76, 178.) In the months that followed plaintiff's return to work, the Union corresponded with the Museum in an attempt to modify plaintiff's work assignment. (See Rule 56.1 Statement, dated Jan. 31, 2011 ("Museum's Rule 56.1"), ¶¶ 12, 13; see also Windholz Aff., Exs. H, I.)
In January 2006, plaintiff had surgery on her arm related to one of her prior injuries; following the surgery, she was absent from work for about eight months. (Rahman Dep. at 232--33.) In a "Back to Work Certificate" dated September 25, 2006, Dr. Harshad C. Bhatt stated that plaintiff was still "[p]artially [i]ncapacitated" but could "go back to restricted duties at work . . . ." He also stated that [s]he is advised to avoid long periods of standing, lifting, bending without sitting down periodically. Patient needs Physical therapy two times a week. Patient needs ability to sit for 5--10 minutes every hour if she develops symptoms in her back and spine . . . . (Declaration of Meaghean Murphy, Esq., dated Jan. 31, 2011 ("Murphy Decl."), Ex. 14.) Before plaintiff returned to work she met with Daniel Scheiner ("Scheiner"), the Museum's associate director of human resources, three times in September 2006. (See Affidavit of Daniel Scheiner in Support of Defendant's Motion for Summary Judgment, sworn to Jan. 28, 2011 ("Scheiner Aff."), ¶ 3.) On September 18, 2006, Scheiner offered plaintiff a schedule that included a paid lunch break and an additional half-hour unpaid break. (Id. ¶ 4.) Rahman rejected the schedule and instead requested that she be allowed to take a paid break whenever necessary. (Id. ¶ 5.) A week later, Scheiner presented four different schedules (which allowed plaintiff to choose between one, two, or three unpaid thirty-minute breaks per day) to plaintiff through her union representatives. (Id. ¶ 8.) On October 4, 2006, Steven Sykes ("Sykes"), the Union's assistant general counsel, advised Scheiner that plaintiff had accepted one of the four modified schedules, which allowed her one thirty minute unpaid break a day and a 37.5 hour work week. (Id. ¶ 9.)
Plaintiff reported to work the following day but left work after advising Scheiner that she believed the Museum was breaking its agreement by not assigning her to one of six posts she had previously requested. (Museum's Rule 56.1 ¶¶ 21, 22.) Over the next few weeks, Scheiner negotiated with Sykes and other union representatives over plaintiff's post and schedule. (See Scheiner Aff. ¶¶ 13, 14, 18.) Plaintiff ultimately agreed to return to work on November 6, 2006 with a 37.5 hour weekly schedule with one unpaid thirty minute break each day. (Museum's Rule 56.1 ¶ 28.)
On January 17, 2007, Scheiner and members of his staff met with plaintiff and Reggie Quadar, a Union representative. (Scheiner Aff. ¶ 19; see also Windholz Aff., Ex. T.) At the meeting, Scheiner advised plaintiff that she had called in sick on eighteen of the forty-nine work days since her return and gone home early on an additional four days. (Scheiner Aff. ¶ 20.) He also informed her that since the Museum had agreed to bring her back for a trial period, it would review whether the offered accommodation was working from its perspective. (Museum's Rule 56.1 ¶ 32.)
After review of plaintiff's attendance, the Museum determined that the offered accommodation was not working out. (Id. ¶ 33.) As a result, on February 14, 2007, Scheiner and Don Boyle met with plaintiff, Reggie Quadar, and Madonna Knight, another union representative; they proposed a reduced schedule of 22.5 hours a week. (Id.) By letter to Scheiner dated February 15, 2007, plaintiff rejected the proposed reduced work schedule. (Id. ¶ 35; see also Windholz Aff., Ex. U.) As a result, the Museum terminated plaintiff's employment on February 23, 2007. (Museum's Rule 56.1 ¶ 36.)
On February 26, 2007, plaintiff met with Knight and Sykes in Sykes's office. (Affirmation of Steven Sykes, Esq., dated Fed. 3, 2011 ("Sykes Aff."), ¶ 9.) Sykes and Knight stated that they would file a grievance of plaintiff's termination on her behalf and request a "Step II" hearing before a grievance committee made up of staff-level employees. (Id. ¶ 11; see also Murphy Decl., Ex. 30 at 14 (explaining the grievance procedure).) That same day Knight filed the grievance (Affidavit of Madonna Knight, sworn to Jan. 25, 2011 ("Knight Aff."), ¶ 15), and she represented plaintiff at the grievance hearing (id. ¶ 16). In a letter dated March 14, 2007, the Grievance Committee informed plaintiff that she had lost the hearing. (See Murphy Decl., Ex. 33.)
In May 2009, in response to an inquiry from Knight on whether
plaintiff's grievance would proceed to arbitration, Robin Roach
("Roach"), associate general counsel for the Union's legal department
(the "Legal Department"), authored a memorandum stating that the Legal
Department had determined that plaintiff's case was not appropriate
for arbitration. (Union's Rule 56.1 ¶¶ 22, 23; see also Murphy Decl.,
Ex. 27.) By letter dated June 1, 2009,
Knight informed plaintiff that the Legal Department had "determined
the Museum had cause to discharge your services." (Murphy Decl., Ex.
27.) Knight attached a copy of Roach's memorandum to the letter.
(Knight Aff. ¶ 22.) After receiving Knight's letter, plaintiff called
Mary O'Connell, general counsel of the Legal Department, and requested
an appointment. (Union's 56.1 ¶ 26.) On June 11, 2009, Roach and
Knight met with plaintiff for approximately three hours, during which
Roach gave plaintiff an opportunity to present information and
documents concerning her workers' compensation proceedings.*fn2
(Id. ¶ 27; Affirmation of Robin Roach, Esq., dated Feb. 3,
2011 ("Roach Aff."), ¶¶ 7, 8.) About two weeks after the June 11, 2009
meeting, plaintiff called Knight, Mike Riggio, director of the Union's
White Collar Division, and the Union's Executive Director Lillian
Robert to protest the Union's decision not to take plaintiff's case to
arbitration. (Union's 56.1 ¶ 30; see also Rahman Dep. at 358--60.)
Following these conversations, Roach drafted a second legal memorandum, dated August 27, 2009.*fn3 (Union's 56.1 ¶ 31.) By letter dated September 10, 2009, Knight again advised plaintiff that the Union would not proceed to arbitration, and she attached Roach's August 27th memorandum to the letter. (Windholdz Aff., Ex. X; see also Rahman Dep. at 337--39, 538.)
Presently, both defendants move for summary judgment on plaintiff's claims against them. They argue that plaintiff has not established prima facie cases for any of her causes of action.
A. Summary Judgment Standard "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "The function of the district court in considering the motion for summary judgment is not to resolve disputed issues of fact but only to determine whether there is a genuine issue to be tried." Eastman Mach. Co. v. United States, 841 F.2d 469, 473 (2d Cir. 1988) (citation omitted). It is well-settled that "[o]n a motion for summary judgment, the court is not to weigh the evidence, or assess the credibility of the witnesses, or resolve issues of fact, but only to determine whether there are issues to be tried." United States v. Rem, 38 F.3d 634, 644 (2d Cir. 1994) (citations omitted). A genuine factual issue exists if, taking into account the burdens of production ...